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September 2, 1971

Margaret MAGRO, individually and on behalf of her minor child Antonio Magro, and Anthony Magro, Plaintiffs,

Mishler, Chief Judge.

The opinion of the court was delivered by: MISHLER

Memorandum of Decision and Order

MISHLER, Chief Judge.

 This is an action based on 42 U.S.C. § 1983. The complaint states four claims, only the first of which is a federal claim. *fn1" Jurisdiction over the federal claim is alleged under 28 U.S.C. § 1331. The court, in a Memorandum of Decision and Order dated June 8, 1970, found subject matter jurisdiction since the claim could not ". . . be characterized as wholly insubstantial." *fn2"

 Plaintiffs moved for summary judgment "declaring New York State Uniform Commercial Code Section 7-210 void as violative of the Fourteenth Amendment. . . ." (Plaintiffs' notice of motion.) The motion papers have reference only to the first claim stated in the complaint which alleges that "New York Commercial Code § 7-210 is violative of the Due Process and Equal Protection provisions of the 14th Amendment to the United States Constitution insofar as it permits public sale of bailed goods without prior judicial hearing." (Complaint, P15.) *fn3" However, in plaintiffs' Memorandum in Reply dated April 2, 1971, plaintiffs also urged the court to grant summary judgment on the second claim, that of fraud. The facts relating to the latter, state, claim are in dispute and thus summary judgment is not appropriate. Lemelson v. Ideal Toy Corporation, 408 F.2d 860 (2d Cir. 1969).

 The defendant has cross-moved for an order pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure dismissing the complaint or, alternatively, for summary judgment as to all of plaintiffs' claims. Again, summary judgment would be entirely inappropriate on any of the plaintiffs' state claims, either for plaintiffs or defendant, as substantial issues of controverted fact are present in each of them.

 While the above motions were pending, the Attorney General of the State of New York moved to intervene pursuant to Rule 24(b) F.R. Civ. P. The motion of the Attorney General is granted and his brief has been considered on the question involving the constitutionality of the statute. *fn4"

 The material facts upon which the first claim rests are not in dispute. On or about May 2, 1969, plaintiffs were about to be evicted from the apartment they occupied in Flushing, New York. They called the defendant, which is in the business of moving and storing furniture and household goods. Plaintiff Anthony Magro signed a contract with the defendant. The plaintiffs claim that the contract was signed in blank and while the said plaintiff was under duress. The court does not deem this controverted issue to be material here.

 On May 5, 1969, the furniture and household effects owned by the plaintiffs were moved by the defendant and stored at its warehouse at 272 Herkimer Street, Brooklyn, New York. On or about July 15, 1969, defendant sent plaintiffs, and plaintiffs received, a copy of the contract signed by the plaintiffs wherein the terms for moving and storage were concededly set forth.

 On or about August 18, 1969, defendant served plaintiffs with a notice of sale advising the plaintiffs that in the event that moving and storage fees totaling $881.50 were not paid, the furniture and household goods stored by plaintiffs would be sold at public auction on September 8, 1969, at 10:30 A.M. at defendant's premises in Brooklyn. Thereafter, in response to a letter dated August 26, 1969, the sale was adjourned to October 1, 1969. *fn5"

 The goods were finally sold at auction after a number of additional adjournments which were had at plaintiffs' request. The sale was conducted on November 3, 1969, without a judicial determination of the validity of the defendant's lien, as permitted by New York Uniform Commercial Code § 7-210.

 The crux of plaintiffs' argument on their federal claim is that the statute is unconstitutional because it permits a warehouseman to execute on a statutory lien without a prior determination by the court of the amount of the lien, thereby depriving the owner of the property of the opportunity to litigate the amount of the claim. *fn6" Though the plaintiffs also allege that the operation of the statute deprives them of equal protection of the laws, that point is not argued.

 The court does not reach the issue of whether or not a judicial sale conducted by the lienor pursuant to the statute is state action or action "under color of state law," *fn7" since the court finds that even assuming such action is a form of state action, plaintiffs' Fourteenth Amendment rights are not violated by the operation of the statute.

 Plaintiffs argue that their right to due process of law is violated when their creditor, the warehouseman, can execute on his statutory lien without first initiating some form of judicial proceeding which will determine the validity of the lien and debt. (Plaintiffs' Brief, filed March 30, 1971, at pp. 14-15.) They cite Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S. Ct. 1820, 23 L. Ed. 2d 349 (1969); Speiser v. Randall, 357 U.S. 513, 78 S. Ct. 1332, 2 L. Ed. 2d 1460 (1958); and Armstrong v. Manzo, 380 U.S. 545, 85 S. Ct. 1187, 14 L. Ed. 2d 62 (1965). Their argument amounts to a rejection of the notion that where the owner of the goods has the opportunity to begin court proceedings himself, the requirements of due process are satisfied.

 Plaintiffs cite several cases besides those referred to above which the court finds deserving of discussion. In Coe v. Armour Fertilizer Works, 237 U.S. 413, 35 S. Ct. 625, 59 L. Ed. 1027 (1915), the Court, in broad language, indicated that the opportunity to be heard satisfied due process demands. In that case, a Florida statute was attacked which permitted the creditor of a corporation to execute on the corporation's stockholders' personal goods without either notice or a hearing where the corporation was effectively without assets. The Court held the statute to be "repugnant to the 'due process of law' provision of the 14th Amendment, which requires at least a hearing, or an opportunity to be heard, in order to warrant the taking of one's property to satisfy his alleged debt or obligation." 237 U.S. at 422-423, 35 S. Ct. at ...

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